ABC of Patents
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DISCLAIMER:
The information presented here
In no way shall this information be construed
No warranty whatsoever for the accuracy or fitness USE AT YOUR OWN RISK! |
|
DISCLAIMER:
The information presented here
In no way shall this information be construed
No warranty whatsoever for the accuracy or fitness USE AT YOUR OWN RISK! |
|
A patent is a monopoly granted by the state of a country to a natural or legal person which gives its owner the right to prevent others from using/applying/producing his/her invention in that country, for a limited amount of time (usually at most for 20 years). A patent does NOT give its owner the right to make use of the invention!
I.e., a patent is not a "positive" right, to do something, |
In exchange for the full disclosure of the invention
(and the payment of the respective fees),
the inventor is granted the exclusive rights to prevent
others from exploiting his/her invention,
for a limited amount of time and for a limited region.
This is meant to enable others ("the public") to build upon the knowledge being disclosed.
On the other hand side, this is also meant to give the inventor a fair chance
to recoup on his investments in research and development.
| 1474 | IT | Venetian Patent Law (protection for 10 years) |
| 1623 | GB | Statute of Monopolies only for "manners of new manufacture" inventions for limited periods (14 years) |
| 1790 | US | United States Patent Act (10/04/1790) "An act to promote the Progress of Useful Arts" |
| 1791 | FR | "All new discoveries are the property of the author; ...for five, ten or fifteen years ..." |
| 1877 | DE | 'Kaiserliches Patentamt' (25/05/1877) |
| 1883 | Paris Convention "priority rights of one year" |
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| 1947 | NL | Institut International des Brevets (IIB), Den Haag |
| 1970 | 'PCT' Patent Cooperation Treaty | |
| 1973 | 'EPC' European Patent Convention (05/10/1973) | |
| 1977 | 'EPC' into force (07/10/1977) | |
| 1978 | First EP Application filed (01/06/1978) | |
| 1994 | General Agreement of Tariffs and Trade (GATT) (Uruguay Round of ~) WTO World Trade Organisation TRIPS Trade Related aspects of Intellectual Property rights |
The EPC came into force in 1977. It established the European Patent Organisation, with one of its organs being the European Patent Office, the authority responsible for the grant of European Patents.
The role of the EPO - as the competent authority - is to be the arbitrator between the interests of the public and the interests of the applicant.
The EPO is responsible for establishing a balance in the trade-off between public benefit (sufficient disclosure of the invention, providing an incentive for innovation and economic growth) and the protection of the applicant's investments as well as to provide a fair reward for his disclosure.
The EPC today has 34 member countries or "Contracting States". Note that not all member countries are also part of the European Community, for example Turkey, Romenia, and Bulgaria. However, ratifying the EPC is one of the conditions for becoming a full member of the European Community.
Nevertheless, the European Patent Office (EPO) is not an institution of the EU. It is a separate international organisation with its own administration and headquarters in Munich.
The main advantage and purpose of the EPC is that it allows patent rights to be obtained in any one or more of the EPC Contracting States by filing a single European Patent application. This is considerably cheaper and more efficient than making a separate "national" application in each country.
The principal function of the EPO as the executive organ of the EPC is the granting of European Patents on the basis of a uniform law and centralised procedures, resulting in patent rights on a par with those conferred by patents granted by individual national offices.
On the basis of a single patent application the EPO grants, in effect, a "bundle" of national patents for the Contracting States which the applicant designates.
Until now, no truly "European Patent" or "Community Patent" has been agreed upon by the member states of the European Community, despite ongoing efforts. This means that what the EPO grants is the right to a national patent in each of the Contracting States designated by the applicant, and does not constitute a patent "per se".
As a consequence, any litigation (after the 9-month-period for opposition foreseen by the EPC after the grant of a patent) has to be fought out, in a worst case scenario, in all the national courts of the designated states.
So when granted, a European Patent has the effect of a national patent in each of the countries designated. A European Patent designating e.g. the Netherlands has the same effect as if it were a full-fledged patent granted by the dutch national patent office.
European Patent applications may be filed either with the national patent offices in the Contracting States or directly with one of the branches of the European Patent Office, in any of the three official languages of the EPC (and the EPO); namely English, German and French.
The description is further subdivided into the following sections:
The claims come in two variants, "independent" and "dependent",
and in two basic kinds: "entity" claims and "activity" claims.
These two basic kinds are further subdivided into the following four categories:
Entities comprise "product" and "apparatus",
and activities comprise "process" and "use".
Under the category "apparatus" you frequently see
a "device", a "system" and
a "storage medium", and under the category "process"
you often have a "method".
(See also the
Guidelines
C-III 3.1 "Categories")
See for example:
EP1080411,
EP1193621,
WO0228540
(click on "International publication pamphlet" or on "Abstract",
"Claims", "Drawings", "Description", "EPO search report", ...)
Note that two numbering schemes (i.e.,
types of keys of patent databases) exist:
Application Numbers and Publication Numbers.
Therefore, in order not to constitute such "prior art" against itself, an application for the grant of a patent had to be filed on exactly the same date, everywhere in the world where protection was wanted.
Of course this was very hard to do, especially back in the 19th century when the only way to ship a document worldwide was by mail, involving several weeks worth of voyages by boat.
Therefore, after a diplomatic conference in Paris, France, in 1880, the "Paris Convention for the Protection of Industrial Property" was signed in Paris, France, on March 20th, 1883.
The Convention was originally signed in 1883 by 11 countries: Belgium, Brazil, France, Guatemala, Italy, the Netherlands, Portugal, Salvador, Serbia, Spain and Switzerland.
The Treaty was revised at Brussels, Belgium, on December 14th, 1900,
at Washington, United States, on June 2nd, 1911,
at The Hague, The Netherlands, on November 6th, 1925,
at London, United Kingdom, on June 2nd, 1934,
at Lisbon, Portugal, on October 31st, 1958,
at Stockholm, Sweden, on July 14th, 1967,
and was last amended on September 28th, 1979.
The Convention has now 168 country members (notable exception: Taiwan is not party of the Convention).
The Paris Convention is administered by the World Intellectual Property Organisation (WIPO), based in Geneva, Switzerland.
(Source: http://www.nationmaster.com/encyclopedia/)
The Paris Convention establishes that instead of having to file an application on exactly the same date everywhere in the world, an applicant may now first file his/her application in one of the member states of the Paris Convention and later, during a period of one year after the first filing, file the same application in any of the other member states, while still allowed to claim the so-called "priority right" of the first filing.
This means that the filing date of the later filings will still be considered to be the date of the first filing, when the prior art for that application is to be established.
All the (essentially) identical applications of the same applicant which share the same "priority date", i.e., the date of the first filing, together with the first filed application itself, are called a "family", or "family members" of that family of applications.
In practice, family members are not always absolutely identical. Sometimes this is due to differences in national patent law, so that applicants file different sets of claims in different countries, for example.
Sometimes however, some subject-matter is simply added to or removed from later filings. In such cases, the priority right only applies to that subject-matter of the application which was already present in the first filing.
To make matters still a bit more complex, sometimes applicants file several different first applications, and later combine them into one and file this new application, thereby claiming the priority rights of all the previous applications.
In such a case, the priority rights (and filing dates) for the different parts of the new application are different; it is always the earliest date of disclosure of any given part that counts.
This can result in quite complex structures of priority rights and documents. Applications linked in this way are also considered to be "family members" of a family of applications, all linked together by priority rights.
